Friday, June 19, 2015

Thursday Racial Thursday

by Eric SegallRace was all over America on Thursday. Of course, the
Charleston tragedy dominated the headlines with most thoughtful folks reflecting
on how someone could be so full of hate that he would kill nine innocent people
in cold blood and also thinking about our gun policies and how we can prevent
such massacres in the future. Shame on those who showed sympathy but suggested
we shouldn’t use the incident to discuss issues of race and gun control. If not
now, when?

Race was also all over the Supreme Court on Thursday. The
Justices ruled
that Texas (yes, Texas) could refuse to issue a special license plate with a Confederate flag on it even though Texas permits all kinds of symbols and
messages on its plates and this was the first time an application for such a
plate was turned down. The stated rationale for the denial was that the Confederate flag could offend many Texans (you think?). The suspect in the
Charleston murders had a Confederate flag on his plate.

The legal issue in the Texas case was complicated, involving
fine distinctions between private speech (which the government can’t normally
regulate), government speech (which the government can control with little limitation),
and mixed or hybrid government/private speech where the legal rules are
unclear. The majority found this to be a case of pure government speech (thus
allowing the denial), the dissent strongly disagreed, and thoughtful academics
like Mike would have labelled symbols on license plates mixed
government/private speech (which of course it is).

The most interesting aspect of the case, and where race
played a major role, is that Justice Thomas, for one of the few times in his
career, sided with the four liberals against the four conservatives and voted
to uphold the denial. He didn’t write separately but Court watchers
were pretty sure Justice Thomas made an exception to his normal free speech
jurisprudence (and his voting patterns) because as an African American who grow
up in rural Georgia, he knows all too well the racism and violence the Confederate flag stands for.

Race was also present in Atlanta, Georgia on Thursday. I was
a guest on a radio show when two folks called in, one complaining that the media
was turning the Charleston incident into a race baiting episode and the other
arguing that he felt bad for the victims but why couldn’t “those people” get
their act together and stop committing crimes and living in poverty. The host,
a liberal, and I tried to explain to them the context of race relations in
America but to no avail.

In light of these events, it may be useful to recount some basic
history about race in America. Thomas Jefferson’s original draft
of the Declaration of Independence contained an anti-slavery clause but he had
to remove it at the insistence of the Southern colonies. Later, when the framers
met in Philadelphia to write our Constitution, slavery was a major issue
leading to the infamous 3/5 clause and the entrenchment of the practice
of slavery (not specifically named) until 1808.

Race generally and slavery specifically led to the Civil War
where over 600,000 American soldiers were killed. After the War, and despite
the 13th, 14th, and 15th Amendments, the
Supreme Court both prohibited Congress from prohibiting segregation and allowed
the states to entrench Jim Crow, leading to generations of racial apartheid in
our country. In my lifetime (1964), restaurants and hotels went to the Supreme
Court arguing that they had a constitutional right to refuse service to
African Americans.

A typical response to this history from many people is something
to the effect that “that was then and this is now.” Not so and here is why.
Between 1934 and 1962, the federal government allocated approximately 120
billion dollars backing home mortgages with 98% going to white families and
neighborhoods. This led directly to whites owning houses that appreciated in
value which led to white wealth increasing and being handed down from
generation to generation. In addition, this wealth brought good schools and
good jobs creating more wealth and more good schools. All of that prosperity
for “Whites Only” led to separate neighborhoods for whites and blacks in most
cities and states across the country and the resulting cycle of poverty and
desperation. While all this was occurring, blacks were excluded from many jobs
and other important economic opportunities. As of 1970, to cite just one
example, Alabama had never had a black trooper.

The important point is that these tragic events did not occur
naturally or by accident but because of intentional governmental and private
choices. First there was slavery, then segregation, then racist economic
policies and exclusionary employment practices. Anyone who believes that the
effects of hundreds of years of formal legal discrimination and racial abuse
can be ameliorated in one or two generations of formal (but that’s all) racial
equality is living in a world of fantasy and make-believe.

There are no easy answers to our racial problems. But, as Thursday demonstrated so tragically and vividly, we are far away from a
post-racial society. We must all accept that fact categorically if real
progress is going to be made.

3 comments:

With respect to the symbolic confederate battle flag, its current devotees who can trace their ancestry to the antebellum South are less likely to have had forbears who were actual slaveowners as compared to African Americans who trace back to slave days. Most whites back in the days of slavery did not own slaves and it is debatable whether they directly benefitted from slavery economically. Is such devotion for the "good old days" of slavery or a statement that such devotees were never slaves and thus demonstrating their supremacy?

Given the breadth of the majority, I'm unsure if the specific message is what led Thomas to join the liberals. This is not Virginia v. Black (a white person), involving cross burning.

I found one reference that "almost half" of families in antebellum SC owned a slave. The imbalance of white/black was more apparent there than in many slave states. As to SC, slavery was particularly significant in antebellum times. The Confederacy also was particularly significant to S.C. who led the way in secession. It must be particularly significant to the state's ethos. And, we had Strom Thurmond [note: he voted for the Brady Bill] for so long to protect "tradition" in S.C.; Lindsey Graham now has his seat.

A lot of time passed. The people back in the day couldn't conceive of a woman with Indian Sikh parents being governor. But, unlike one person Shag and I know online and others think, yes, all that history didn't suddenly disappear. The issues linger on. The solutions are harder now that some blatant wrongs are gone.

Unintended consequences? Consider Heller's (5-4) stress of self-defense under the 2nd A in reading Chris LeBron's "Time for a New Black Radicalism" in today's (6/22/15) NYTimes. Are recent events a call to arms in self-defense? Is that what the NRA is suggesting? Or is it possible that some of the Heller-5 intended such consequences?